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that the proper course will be to apply for a scire facias in cases which may occur under sect. 36.
§ 5. ON THE POWERS OF RAILWAY COMPANIES TO TAKE LANDS TO CONSTRUCT A RAILWAY, AND HEREIN OF COMPENSATION.
General powers to make the railway.
I. WE have seen that the special act authorises the company to make the railway and works on the lands, &c., delineated and described on the parliamentary plans and books
remedies remain to a creditor of the
special railway acts, since the passing of the Consolidation Acts. See Biggs's Collection of Special Railway Acts.
of reference (a). These lands may be purchased by the company by agreement made with the owners; but if no such agreement be made, then the company are empowered, by various clauses contained in the Lands Clauses Consolidation Act, (commonly called the compulsory clauses), to take the lands; and compensation is awarded to the owners and other persons, in the manner prescribed by the act. The company are also authorised, as we shall see hereafter, by the Railway Clauses Consolidation Act, to make a temporary use of lands, roads, &c., whilst the railway is in the course of formation.
General powers, of a very extensive nature, are granted to the company, to enable them to construct the railway and the accommodation works connected therewith. By the Railway Clauses Consolidation Act, 8 Vict. c. 20, the company are authorised, subject to the provisions and restrictions in the special act and Consolidation Acts contained, to execute any of the following works; (that is to say),
They may make or construct, in, upon, across, under, or over any lands, or any streets, hills, valleys, roads, railroads, or tram-roads, rivers, canals, brooks, streams, or other waters, within the lands described in the said plans, or mentioned in the said books of reference, or any correction thereof, such temporary or permanent inclined planes, tunnels, embankments, aqueducts, bridges, roads, ways, passages, conduits, drains, piers, arches, cuttings, and fences, as they think
They may alter the course of any rivers not navigable, brooks, streams, or watercourses, and of any branches of
(a) Ante, 104. These plans and books of reference are required by the standing orders in Parliament (see Commons' Orders, ante, 19; Lords' Orders, ante, 28) to be deposited at various places where they may at all
times be examined by parties interested: see 1 Vict. c. 83, post, App. 3. As to deviations from the line delineated on the plans, see 8 Vict. c. 20, s. 15, post, App. 162.
Lands taken by agreement.
navigable rivers, such branches not being themselves navigable, within such lands, for the purpose of constructing and maintaining tunnels, bridges, passages, or other works over or under the same, and divert or alter, as well temporarily as permanently, the course of any such rivers or streams of water, roads, streets, or ways, or raise or sink the level of any such rivers or streams, roads, streets, or ways, in order the more conveniently to carry the same over or under, or by the side of the railway, as they may think proper:
They may make drains or conduits into, through, or under any lands adjoining the railway, for the purpose of conveying water from or to the railway:
They may erect and construct such houses, warehouses, offices, and other buildings, yards, stations, wharfs, engines, machinery, apparatus, and other works and conveniences, as they think proper:
They may from time to time alter, repair, or discontinue the before-mentioned works, or any of them, and substitute others in their stead; and
They may do all other acts necessary for making, maintaining, altering, or repairing, and using the railway (V).
And, first, as to the taking of lands by agreement. By 8 Vict. c. 18, s. 6, (post, App. 119), it is enacted, that the company may agree with the owners of lands (which by the interpretation clause extends to the owners of messuages, lands, tenements, and hereditaments, of any tenure (c)) by the special act authorised to be taken, and with all parties having any estate or interest in such lands, or by that or the special act enabled to sell and convey the same, for the absolute purchase thereof, for a consideration in money, and of all estates and interests therein, of what kind soever (d).
(b) 8 Vict. c. 20, s. 16, post, App.
(c) See sect. 3, post, App. 118.
ments made between landowners and the company, see post, and Manning v. The Eastern Counties Railway, 12 M. & W. 237, post, 248.
And, as many persons are incapacitated from selling their lands, by reason of disabilities of various kinds, the statute proceeds to declare it to be lawful (e) for all parties, being seised, possessed of, or entitled to any such lands, or any estate or interest therein, to sell and convey or release the same to the company, and to enter into all necessary agreements for that purpose, and particularly for all or any of the following parties; (that is to say), all corporations, tenants in tail or for life, married women seised in their own right or entitled to dower, guardians, committees of lunatics and idiots, trustees or feoffees in trust for charitable or other purposes, executors and administrators, and all parties for the time being entitled to the receipt of the rents and profits of any such lands in possession, or subject to any estate in dower, or to any lease for life, or for lives and years, or for years, or any less interest.
And this power to sell, &c., may be exercised by all the before-mentioned parties, (other than married women entitled to dower, or lessees for life, or for lives and years, or for years, or for any less interest), not only on behalf of themselves and their respective heirs, executors, administrators, and successors, but also for and on behalf of every person entitled in reversion, remainder, or expectancy after them, or in defeasance of the estates of such parties; and as to such married women, whether they be of full age or not, as if they were sole and of full age; and as to such guardians, on behalf of their wards; and as to such committees, on behalf of the lunatics and idiots of whom they are the committees respectively; and that to the same extent as such wives, wards, lunatics, and idiots respectively, could have exercised the same power, under the authority of that or the special act
(e) 8 Vict. c. 18, s. 7, post, App. 119.
Tenants in tail
and other parties
may sell and convey lands.
Common and waste lands.
if they had respectively been under no disability: and as to such trustees, executors, and administrators, on behalf of their cestui que trusts, whether infants, issue unborn, lunatics, femes covert, or other persons; and that to the same extent as such cestui que trusts, respectively, could have exercised the same powers, under the authority of that and the special act, if they had respectively been under no disability. (Sect. 7, post, App. 119).
Special provisions are also inserted to enable the company to take a conveyance of copyholds, common lands, waste lands, and lands in mortgage, and to release lands from existing charges.
As to copyholds, it is provided, that every conveyance of copyhold lands to the company, shall be entered on the rolls of the manor. (Id., s. 95, post, App. 140). And within a certain period afterwards, the company are required to pay the lord of the manor, compensation, to be assessed according to the mode prescribed, for the enfranchisement of the lands. (Id., s. 96, post, App. 140). The lands, when enfranchised, are to be held in free and common socage; and if the lord fails to enfranchise the lands, the company may execute a deed-poll, in the manner provided in the case of a purchase of lands (e). (Id., s. 97, post, App. 140). Rents payable in respect of copyhold lands may, in certain cases, be apportioned in the manner prescribed. (Id., s. 98, post, App. 141).
As to common and waste lands, it is provided, that the compensation in respect of the right in the soil shall be paid by the company to the lord of the manor. (Id., s. 99, post, App. 141). And, upon payment or deposit thereof in the Bank, a conveyance from the lord of the manor to the company will operate as if he had been seised in fee simple; and in default of such conveyance, the company may execute a
(e) See, as to this conveyance, post, 336.